While divorce in the military involves the same legal processes as civilian divorce, special issues can arise. Where should you file for divorce? How are military pay, pensions, and benefits divided during a divorce? What kind of legal help is available, and what experience should an attorney have? These are important questions for service members and spouses looking at divorce. This section provides answers to these questions and more.
Where to Divorce?
Filing for divorce requires a civil suit. As with civilians, this occurs in state court. Complications can arise for military personnel and their spouses because state law generally requires state residency in order to file for a divorce. This may not be straightforward for military families. Where you vote, pay taxes, what state issued your driver’s license, where you own property, and where you or your children qualify for in-state tuition are common factors for determining residency. It’s common for military families to have questions about residency. Multiple options can exist too, and many states relax residency requirements for military personnel. This is one of the first things you should look into when proceeding with a divorce.
Deciding where to file can have substantive consequences. While all states have no fault divorce, some states retain the option for divorce citing the fault of one party. This can affect how property is divvied up, child custody arrangements, and how the divorce process unfolds. All states have their own laws and some can be more favorable than others depending on the circumstances. A service member might benefit from filing divorce proceedings in one state while a spouse might benefit from filing in another state. This is something to speak with a divorce lawyer about.
Dividing Assets: Pay, Pensions, and Benefits
How is a married couple’s property divided up? This is among the most common divorce questions. Military personnel should know that state courts handling their divorce are fully able to order spousal support, child support, divide pensions and pay, and make other decisions affecting their benefits and compensation. Military spouses should be aware that the military’s pay, pension, and benefit system are unique. While divorce courts know how to divide up a martial estate, the details of military pay, pensions, benefits, and other laws can prove more complicated. It helps to do your homework and have an attorney who understands the military.
Federal law permits military pensions to be treated as either sole property or community property. Which applies will depend on the law of the state handling the divorce and can significantly affect the final property distribution. There are other considerations in military divorce that should receive attention. The Survivor’s Benefit Plan (SBP) is a military annuity program that can get overlooked. Other military benefit programs can be obscure to those without experience in dealing with them.
Getting Legal Help
You can find more information about divorce in the military here. If you have specific questions, military personnel and spouses can speak to on-base legal assistance attorneys. If you’re looking to initiate proceedings, we recommend contacting a divorce attorney experienced in handling cases involving military personnel.